Rethinking Section 2 Vote Denial

Abstract

It has now been more than 35 years since passage of the Section 2 results standard, and how that standard applies to vote denial claims (e.g., claims involving voter identification) remains extremely muddled. The Supreme Court has never ruled on a vote denial claim in the context of the Section 2 results standard, and lower courts have struggled to develop a workable framework. Yet it is now more imperative than ever to establish a workable framework because Section 2 vote denial claims have become more prevalent in the wake of the Court's 2013 ruling in Shelby County v. Holder. This Article proposes a judicially- administrable framework for applying the Section 2 results standard to claims of vote deni- al. In short, when applying Section 2 to such claims, a court should balance the government interest in the election law against the harm to minority voters. If the government interest outweighs the harm, the law should be upheld; however, if the harm outweighs the govern- ment interest, the law should be struck down. Importantly, when doing so, courts should generally only accept two justifications from the government-increasing the number of ballots cast and increasing the accuracy of elections. On the flip side, when assessing harm to minority voters, courts should almost exclusively focus on actual disfranchisement of minority voters. In developing this framework, this Article discusses the history of the adop- tion of the Section 2 results standard and demonstrates how the above framework adequate- ly represents the compromise forged by liberals and conservatives in adopting that stand- ard. It also details why the framework represents something better than what currently exists and tackles potential objections to the proposal.